The Media’s Double Standard On Privacy

Privacy is an increasingly precious commodity in our era, and violating it often triggers outrage. But who is outraged depends upon who is being violated, and by whom.

A couple of recent news items illustrate the contrast. In the first, the Justice Department recently informed The Associated Press that it had covertly seized records of outgoing calls on more than 20 telephone lines used by The AP and its reporters. According to The AP’s coverage of the story, the Justice Department would not say why it sought the records, though the prevailing theory is that the seizure was linked to a May 2012 story about a CIA operation in Yemen that foiled a terrorist plot, which included leaked information about the CIA’s activities.

Gary Pruitt, the news agency’s president and CEO, wrote a strongly worded letter to Attorney General Eric Holder on Monday. “There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” the wire service chief said. Other news organizations, as well as The Newspaper Association of America, expressed shock and concern over the incident. In a news conference on Tuesday, Holder defended the Justice Department’s action, though he said he had recused himself and was not personally involved.

Meanwhile, Bloomberg recently admitted that some of its journalists had habitually accessed information on their terminals about subscribers’ contact information and terminal use. The Bloomberg staff could not see trades, portfolios, or clients’ messages to one another, but they could use the information they obtained to advance stories. For example, noticing an employee had not logged on for some time might prompt a reporter to seek information on that employee’s status with the company.

Bloomberg apologized, and CEO Matthew Winkler wrote that “the error is inexcusable” in an op-ed published on Monday. Yet many of Bloomberg’s clients – who pay, on average, about $20,000 per year for use of this database – remain angry that their information was available to reporters feeding stories back to the mother ship. Bloomberg said it has deactivated the system that allowed reporters access to this data, but rebuilding client trust will be a long process.

Though the stories above are unconnected, they mirror one another. The outraged journalists in the first are the ones causing outrage in the second.

Reporters at The AP and elsewhere are incensed that the Justice Department went fishing in the news agency’s phone records without notifying the organization or exhausting other avenues first. (Holder maintained that the Justice Department was thorough and that the subpoenas were properly limited in time and scope.) Federal officials have regularly extended such niceties to journalists since Watergate. The New York Times noted that Justice Department regulations call for “notice and negotiation” under normal circumstances, though a serious leak in the intelligence community could surely be said to fall outside that heading.

The Justice Department extends consideration to journalists as a courtesy, but those who bring us the news ought to remember that they are not specially protected individuals under the law. They have the same rights and responsibilities as anyone else. Assuming the Justice Department’s subpoena to The AP’s phone providers was valid, the real questions on the table are whether the government treats too much information as secret and whether investigators can turn too easily to subpoenas without going through a judge, who could protect the public’s privacy and due process rights. Those questions are both fair.

But they aren’t the questions The AP and its fellow news organizations are raising. Instead, the organizations focus on their own feelings of violation in this particular case, and the potential for the government to identify confidential sources through the seized records.

Journalists and their sources ought to know by now that if they leave a trail for investigators to follow, investigators will follow it if the stakes are high enough. Terrorist activity is one instance where the stakes that high. Unlike the reporters who concern themselves, at their most noble, only with keeping the public informed, the government has multiple public interests to consider: keeping everyone safe, protecting intelligence sources and methods, respecting privacy, and disclosing information the public ought to know.

Nowadays, we all understand that our physical and digital movements are easily observed by those with sufficient interest. If journalists want clandestine meetings with sources, they should do it the way Woodward and Bernstein did with Deep Throat: Meet at night, face to face, in a dark garage.

Journalists risk coming across as crybabies or hypocrites when they demand the government give them space to pry into its secrets without repercussion while they themselves gleefully trample on the privacy expectations of others, as Bloomberg’s reporters did – and as did Eric Lipton of The New York Times, about whom I recently wrote in this space.

Like it or not, the government has a public interest to protect, particularly when it comes to thwarting terrorist attacks. Anyone who thought the Feds wouldn’t be interested in where The AP got its information about the CIA’s Yemen exploit was naive in the extreme.

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